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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MUSA IKHARO, 

 CASE NO. 2:12-CV-489 

 Petitioner, JUDGE GREGORY L. FROST 

 Magistrate Judge Elizabeth P. Deavers 

 v. 

MIKE DEWINE, ATTORNEY GENERAL, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant 

to 28 U.S.C. § 2254. For the reasons that follow, the Magistrate Judge RECOMMENDS that 

Respondent’s Motion to Dismiss and Supplemental Motion to Dismiss, Doc. Nos. 13, 16, be 

GRANTED and that this action be DISMISSED. 

Petitioner challenges his December 1994 convictions in the Franklin County Court of 

Common Pleas on disseminating matters harmful to juveniles and sexual imposition. These 

convictions are the result of his negotiated plea agreement. Previously, the Court sustained 

Petitioner’s objections to the Magistrate Judge’s recommendation of dismissal of this action 

under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts as 

time-barred. Specifically, the Court found that, if Padilla v. Kentucky, 559 U.S. --, 130 S.Ct 

1473 (2010) applied retroactively to Petitioner’s challenge to his plea negotiations and guilty 

plea, this action could be timely. See Padilla, 130 S.Ct. 1473 (failure to advise a criminal 

defendant of the immigration consequences of his guilty plea constitutes ineffective assistance of 

counsel). 

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Since the Court issued its prior Order, the United States Supreme Court has held that 

Padilla is not to be retroactively applied to cases on collateral review. Chaidez v. United States, 

133 S.Ct 1103 (2013). Thus, for the reasons the Undersigned has already discussed, this action 

plainly is barred by the one-year statute of limitations imposed under 28 U.S.C. § 2244(d), and 

must be dismissed on that basis. See Report and Recommendation, June 13, 2012, Doc. No. 6. 

Moreover, the Respondent now has filed a Motion to Dismiss and Supplemental Motion 

to Dismiss for Lack of Jurisdiction, indicating that Petitioner was not in custody at the time he 

filed his habeas corpus petition. Respondent moves for dismissal of this action on this basis. 

Doc. Nos. 13, 16. 

Petitioner opposes the Respondent’s Motions. Doc. Nos. 14, 17. Petitioner 

acknowledges that he has been deported from the United States, is residing in Nigeria, and was 

no longer in custody at the time he filed the instant habeas corpus petition. See Petitioner’s 

Response in Opposition to Motion to Dismiss, Response in Opposition to Supplemental Motion to 

Dismiss, Doc. Nos. 14, 17. Nonetheless, he contends that, because the appeal of his deportation 

remains pending, he remains “in custody” for purposes of federal habeas corpus proceedings. 

See Petitioner’s Response in Opposition to Motion to Dismiss, Doc. No. 14. He also complains 

that the Respondent improperly refers to him as a woman in the Motion to Dismiss. Petitioner 

also contends that Respondent’s counsel suffers a conflict of interest because he also represents 

the Department of Homeland Security in Petitioner’s deportation case. None of these 

contentions have merit with respect to the issues presented in this case. 

A federal habeas corpus petitioner must be “in custody” under the conviction or sentence 

under attack at the time he files his habeas corpus petition. 28 U.S.C. § 2254(a); Maleng v. 

Cook, 490 U.S. 488, 490–491 (1989) (citing Carafas v. La Valle, 391 U.S. 234, 238 (1968); 28 

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U.S.C. § 2254(a). “When a petitioner's sentence for a conviction has fully expired, the 

conviction may not be directly challenged because the petitioner is no longer ‘in custody’ 

pursuant to that conviction.” Ferqueron v. Straub, 54 Fed.Appx. 188, 2002 WL 31828191, at *1 

(6th Cir. Dec. 13, 2002)(citing Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 401 

(2001)). A prisoner who has been released on parole on his unexpired sentence fulfills the “in 

custody” requirement for habeas corpus review. A petitioner whose sentence has completely 

expired prior to the filing of his habeas corpus petition, however, does not. Maleng, 488 U.S. at 

492–93. “The collateral consequences of a conviction for which the sentence has completely 

expired are insufficient to render a petitioner ‘in custody’ under § 2254(a).” Ferqueron, 2002 

WL 31828191, at *1 (citing Maleng, 490 U.S. at 492). Petitioner’s immigration status 

constitutes a collateral consequence of his conviction that is insufficient to satisfy the “incustody” requirement for federal habeas corpus proceedings, without which this Court lacks 

jurisdiction to consider Petitioner’s 2254 petition. Camera v. New York, No. 11-cv-8235, 2012 

WL 3242697, at *3 (S.D. N.Y. Aug. 9, 2012)(“[I]mmigration detention is not ‘custody’ for the 

purposes of establishing jurisdiction to consider habeas petitions challenging a state court 

conviction pursuant to 28 U.S.C. § 2254.”)(quoting Ogunwomogu v. United States, 512 F.3d 69, 

70 (2d Cir. 2008)). Thus, even if Padilla applied retroactively to cases on collateral review, 

which is does not, this Court cannot consider Petitioner’s § 2254 petition because his sentence 

had fully expired prior to the date that he filed this action. 

[S]ee Dade v. Schneiderman, No. 12–CV–2092, 2012 WL 

2675009, at *1 (E.D. N.Y. July 05, 2012) (noting that the Second 

Circuit has yet to weigh in on Padilla' s retroactivity), Petitioner's 

argument fails. That Petitioner is not in custody for his 1996 

conviction strips this Court of jurisdiction to consider the merits of 

the Petition (and whether Padilla should be applied in this case). 

See Guzman v. United States, No. 11–CV–2433, 2011 WL 

6097128, at *3–4 (S.D. N.Y. Dec. 7, 2011) (dismissing for lack of 

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jurisdiction habeas petition alleging ineffective assistance of 

counsel, noting that “collateral immigration consequences of a 

petitioner's conviction are not sufficient to satisfy this 

jurisdictional requirement,” and that “[e]ven if [petitioner] were 

incarcerated by immigration authorities or subject to deportation, 

his sentence would not be challengeable on this basis alone”); see

also Mainali v. Virginia, No. 11–CV–1215, 2012 WL 2619132, at 

*2–3 (E.D. Va. June 25, 2012) (holding that Padilla did not alter 

the custody requirement, and that a petitioner is not in custody 

after completing his sentence merely because he faces 

deportation); Vasquez v. Ryan, No. 11–CV–2300, 2012 WL 

959354, at *5–6 (E.D. Pa. Mar. 21, 2012) (same); Fenton v. Ryan, 

No. 11–CV–2303, 2011 WL 3515376, at *2 (E.D. Pa. Aug. 11, 

2011) (same); United States v. Krboyan, No. 10–CV–2016, 2010 

WL 5477692, at *6–7 (E.D. Cal. Dec. 30, 2010) (same); Walker v. 

Holder, No. 10–CV–10802, 2010 WL 2105884, at *1 (D. Mass. 

May 24, 2010) (“Here, [petitioner] represents that he completed his 

sentence and is in custody—not as a sentenced prisoner—but as an 

immigration detainee. Because he has completed his criminal 

sentence for the conviction which he seeks to challenge, 

[petitioner] is not ‘in custody’ for purposes of § 2254.”). 

Camera v. New York, 2012 WL 3242697, at *4; see also Kandiel v. United States, 964 F.2d 794, 

796 (8th Cir. 1992)(deportation proceedings constitute a collateral consequence of the conviction 

insufficient to satisfy in custody requirement for § 2255 proceedings)(citation omitted); United 

States v. Montoya, 891 F.2d 1273, 1293 (7th Cir. 1989); United States v. Romero–Vilca, 850 

F.2d 177, 179 (3d Cir. 1988); Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir. 1976); United 

States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975) (per curiam)); see also Mainali v. Virginia, 

873 F.Supp.2d 748, 7511-52 (E.D. Va. June 25, 2012)(same)(citing United States v. Esogbue, 

357 F.3d 532, 534 (5th Cir. 2004)(other citations omitted)). 

 In short, this Court lacks jurisdiction to consider the instant habeas corpus petition, as 

Petitioner fails to satisfy the in-custody requirement of 28 U.S.C. § 2254(a). Moreover, this 

action plainly is time-barred. 

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WHEREUPON, the Magistrate Judge RECOMMENDS that Respondent’s Motion to 

Dismiss and Supplemental Motion to Dismiss, Doc. Nos. 13, 16, be GRANTED and that this 

action be DISMISSED. 

PROCEDURE ON OBJECTIONS 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 

636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

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The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

 s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers 

 United States Magistrate Judge 

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